167
The Award 5 September 2016 of the Annex VII Arbitral Tribunal given in The
Duzgit Integrity case recalls quasi per litteram the different ways Art. 293(1)
UNCLOS makes possible the crossing between UNCLOS rules and other sets of
rules, ways emphasized in the above described rulings: direct incorporation in the
Convention of other rules of international law, resort to foundational or secondary
rules of general international law (such as law of treaties or rules of State responsibility), relying on primary rules of international law other than the Convention in
the case of some broadly worded or general provisions in order to interpret and
apply particular provisions of the Convention.
31
Finally, in The “Enrica Lexie” Incident case the parties seem to have contrasting
attitudes on the applicability of the customary international rules on the immunity
of Italian marines in a dispute concerning the interpretation or application of
UNCLOS. In the proceedings before ITLOS India stated that, given that articles 95
and 96 UNCLOS refer to immunity of warships and government ships operated for
non-commercial purposes and that Italian marines were on board a merchant vessel,
“the Government of India was not obliged to recognize their claim of immunity
under the Convention or any other principle of international law” (para. 112). As for
Italy it “invokes its rights under the Convention and customary international law, in
particular ‘(a) …; and (b) Italy’s rights in relation to its own immunity and the
immunity of its officials”. As known, ITLOS in the Order 24 August 2015 stated in
a considerando that “the question of the status of the two Marines relates to the
pre-existing to the Convention ‘historic rights’ should be excluded from the evaluation of the
Annex VII arbitral tribunal which answered in the following terms: “Nor is the existence of a dispute concerning the interpretation and application of the Convention vitiated by the fact that
China’s claimed entitlements appear to be based on an understanding of historic rights existing
independently of, and allegedly preserved by, the Convention. The Philippines’ position, apparent
both in its diplomatic correspondence and in its submissions in these proceedings, is that ‘UNCLOS
supersedes and nullifies any ‘historic rights’ that may have existed prior to the Convention’. This
is accordingly not a dispute about the existence of specific historic rights, but rather a dispute about
historic rights in the framework of the Convention” (para. 168 initial part) (italics added).
31 PCA, The Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe), Award, 5 September
2016, para. 208: “While Article 293(1) does not extend a tribunal’s jurisdiction, it ensures that a
tribunal can give full effect to the provisions of the Convention. For this purpose, some provisions
of the Convention directly incorporate other rules of international law. As stated by the tribunal in
the Arctic Sunrise Arbitration, in order properly to interpret and apply particular provisions of the
Convention, it may be necessary for a tribunal to resort to foundational or secondary rules of general international law such as the law of treaties or the rules of State responsibility. In the case of
some broadly worded or general provisions, it may also be necessary to rely on primary rules of
international law other than the Convention in order to interpret and apply particular provisions of
the Convention. Both arbitral tribunals and ITLOS have interpreted the Convention as allowing for
the application of relevant rules of international law. Article 293 of the Convention makes this possible”. In para. 209 the Award states that in the specific case “[t]he exercise of enforcement powers
by a (coastal) State in situations where the State derives these powers from provisions of the
Convention is also governed by certain rules and principles of general international law, in particular the principle of reasonableness. This principle encompasses the principles of necessity and
proportionality. These principles do not only apply in cases where States resort to force, but to all
measures of law enforcement. Article 293(1) requires the application of these principles. They are
not incompatible with the Convention”.
The Provisional Measures in The “Enrica Lexie” Incident Case
The Award 5 September 2016 of the Annex VII Arbitral Tribunal given in The
Duzgit Integrity case recalls quasi per litteram the different ways Art. 293(1)
UNCLOS makes possible the crossing between UNCLOS rules and other sets of
rules, ways emphasized in the above described rulings: direct incorporation in the
Convention of other rules of international law, resort to foundational or secondary
rules of general international law (such as law of treaties or rules of State responsibility), relying on primary rules of international law other than the Convention in
the case of some broadly worded or general provisions in order to interpret and
apply particular provisions of the Convention.
31
Finally, in The “Enrica Lexie” Incident case the parties seem to have contrasting
attitudes on the applicability of the customary international rules on the immunity
of Italian marines in a dispute concerning the interpretation or application of
UNCLOS. In the proceedings before ITLOS India stated that, given that articles 95
and 96 UNCLOS refer to immunity of warships and government ships operated for
non-commercial purposes and that Italian marines were on board a merchant vessel,
“the Government of India was not obliged to recognize their claim of immunity
under the Convention or any other principle of international law” (para. 112). As for
Italy it “invokes its rights under the Convention and customary international law, in
particular ‘(a) …; and (b) Italy’s rights in relation to its own immunity and the
immunity of its officials”. As known, ITLOS in the Order 24 August 2015 stated in
a considerando that “the question of the status of the two Marines relates to the
pre-existing to the Convention ‘historic rights’ should be excluded from the evaluation of the
Annex VII arbitral tribunal which answered in the following terms: “Nor is the existence of a dispute concerning the interpretation and application of the Convention vitiated by the fact that
China’s claimed entitlements appear to be based on an understanding of historic rights existing
independently of, and allegedly preserved by, the Convention. The Philippines’ position, apparent
both in its diplomatic correspondence and in its submissions in these proceedings, is that ‘UNCLOS
supersedes and nullifies any ‘historic rights’ that may have existed prior to the Convention’. This
is accordingly not a dispute about the existence of specific historic rights, but rather a dispute about
historic rights in the framework of the Convention” (para. 168 initial part) (italics added).
31 PCA, The Duzgit Integrity Arbitration (Malta v. São Tomé and Príncipe), Award, 5 September
2016, para. 208: “While Article 293(1) does not extend a tribunal’s jurisdiction, it ensures that a
tribunal can give full effect to the provisions of the Convention. For this purpose, some provisions
of the Convention directly incorporate other rules of international law. As stated by the tribunal in
the Arctic Sunrise Arbitration, in order properly to interpret and apply particular provisions of the
Convention, it may be necessary for a tribunal to resort to foundational or secondary rules of general international law such as the law of treaties or the rules of State responsibility. In the case of
some broadly worded or general provisions, it may also be necessary to rely on primary rules of
international law other than the Convention in order to interpret and apply particular provisions of
the Convention. Both arbitral tribunals and ITLOS have interpreted the Convention as allowing for
the application of relevant rules of international law. Article 293 of the Convention makes this possible”. In para. 209 the Award states that in the specific case “[t]he exercise of enforcement powers
by a (coastal) State in situations where the State derives these powers from provisions of the
Convention is also governed by certain rules and principles of general international law, in particular the principle of reasonableness. This principle encompasses the principles of necessity and
proportionality. These principles do not only apply in cases where States resort to force, but to all
measures of law enforcement. Article 293(1) requires the application of these principles. They are
not incompatible with the Convention”.
The Provisional Measures in The “Enrica Lexie” Incident Case